The Honorable Aharon BarakVisiting Professor of LawGruber Global Constitutionalism Fellow, Yale Law SchoolFormer President of the Supreme Court of Israel

In contemporary liberal societies, effective governance requires balancing individuals’ concerns with the state’s need to maintain general rules and standards. Disputes over religious liberty set these competing interests into stark relief and pose complex questions to secular judges. Ought prison staff be required to prepare vegetarian meals for a Buddhist inmate? Should the Amish be allowed to bypass laws requiring photo identification? Should a court postpone its meeting set on Yom Kippur because a Jewish lawyer requests it? Answering these questions demands a consideration not only of how to weigh these competing interests, but also of the extent to which secular authorities should assess religious obligations.

In Canada, Israel, and much of Europe, courts have frequently turned to proportionality analysis to determine what provisions ought be allowed for individuals’ religious liberty. In the United States, courts have historically attempted to leave such decisions to legislators. Since Employment Division v. Smith (1990), the Supreme Court has found that neutral laws of general applicability do not violate individuals’ constitutional guarantee to free exercise. In cases where disputes arise, the justices have left the matter to be settled out of court, but does allowing local authorities to create religious exemptions provide enough protections for minority groups?